Excerpt:.....and conditions of service and could not, therefore, be reduced. -(a) those who were getting 2i days leave per month of the season plus 3 days sick leave per season will get 1/2 day casual leave and 1/2 day sick leave per month and the balance will be given to them under the factories act, so that the total quantum of leave enjoyed by them previously will remain unaffected. kacker contended that the tribunal failed to see the effect of section 78 of the indian factories act and the effect of section 6 of the uttar pradesh shops and commercial establishments act that leave available to the employees cannot be unilaterally curtailed. and (c) the leave earned in the year prior to that in which the leave is enjoyed ;shall be deemed to be days on which the worker has worked in a factory..........after lapse of the notice-period, get the following leave:(a) those workmen who were getting 21/2 days leave per month, i.e., 30 days in a year plus 7 days sick leave per year, i.e., a total of 37 days in a year, will now get 6 days casual, 10 days sick and 21 days leave under the factories act. thus, the total quantum of 37 days, in their case, will remain unaffected.(b) those workmen, who were getting 11/2 days leave per month plus 7 days sick leave per year or a total of 25 days in a year, will get 30 days leave per year split as under:sick leave, 10 days in a year. casual leave, 6 days in a year. leave under the factories act, 14 days in a year.their total will thus be 30 days in a year.2. seasonal workmen.-(a) those who were getting 2i days leave per month of the season plus 3 days.....

Judgment:

D.D. Seth, J.

1. This is a petition under Article 226 of the Constitution. The facts of the case, in brief, as contained in the petition, are:

2. By a notification dated 13 December 1961 the State Government, under Section 4K of the Uttar Pradesh Industrial Disputes Act, 1947 (hereinafter called the Act), referred the following matter of dispute for adjudication to the industrial tribunal (II), Allahabad (hereinafter called the tribunal):

Whether the employers have reduced the quantum of leave as obtaining to their workmen prior to 4 July 1961, legally and/or justifiably If not, to what relief are the workmen entitled and with what details ?

3. The tribunal registered the case and issued notices to the parties. The case of the workmen was espoused by the petitioners before the tribunal. The parties filed the written statements and rejoinder statements. The case of the workmen before the tribunal was that prior to 4 July 1961 the workmen of the Ratna Sugar Mills Company, Ltd. (hereinafter called the mills), were enjoying leave facility in the following manner:

(a) The workmen covered under the Factories Act

(i) Permanent workmen of supervisory category:

30 days due (privilege) leave.

10 days sick leave.

6 days casual leave.

46 days per year.

(ii) Permanent workmen other than belonging to supervisory category per year:

4. Their case further was that the leave facility enjoyed by them had now become terms and conditions of service and could not, therefore, be reduced.

5. It is stated in Para. 7(2) of the petition that neither there was evidence on record nor it was proved by the management that prior to 4 July 1961 any category of workmen were getting leave at the following rates:

(i) 30 days plus 7 days-Total 37 daya per year.

(ii) 18 days (14 days per month) plus 7 days-Total 25 days per year.

(iii) 24 days per month plus 3 days per season.

(iv) 14 days per month plus 3 days per season.

6. On 4 July 1961 the mills gave two notices to the secretaries of the petitioners, one referring to the workers whose leave was governed by the Indian Factories Act, 1948, and the other to those whose leave was governed by the Uttar Pradesh Shops and Commercial Establishments Act, 1947. These notices were given under Section 41 of the Act and may be reproduced here. By the first notice the petitioners were informed that it was the intention of the mills to effect the changes specified in the annexure to the notice with effect from 1 August 1961. The annexure to the notice is as follows:

Those employees of the Ratna Sugar Mills Company, Ltd., Shahganj, to whom the provisions of the Factories Act do not apply and are covered by the provisions of the Uttar Pradesh Shops and Commercial Establishments Act, 1947, and to whom leave was being granted till date in pursuance of the Arbitration award in Adjudication Case No. 1 of 1959 before the industrial tribunal (III), Uttar Pradesh, Allahabad, dated 7 May 1959, and enforced by the Government-vide G.O. No. 3370 (ST) XXXVI-A-23 (ST)/S9, dated 8 June 1959, published in the Uttar Pradesh Gazette, dated 20 June 1959, will be given henceforth ordinary earned leave (15 days), sick leave (15 days) and casual leave (10 days) in a year as provided in the said Act and not more than that after the lapse of the notice-period.

7. By the second notice the petitioners were informed that it was the intention of the mills to effect the changes specified in the annexure to the notice with effect from 1 August 1961. The annexure to the notice is as follows:

In pursuance of the Arbitration award In Adjudication Case No. 1 of 1959 before the industrial tribunal (III), Uttar Pradesh, Allahabad, dated 7 May 1959, and enforced by the Government-vide G.O. No. 3370 (ST) XXXVI-A-23-(ST)-59, dated 8 June 1959, the concern had to allow to its workmen excess leave in accordance with the said Arbitration award, on its interpretation of the explanation to Clause G-1 of the standing orders enforced by the Government as per Notification No. 5436 (ST) XXXVI-A-208 (ST)-58, dated 3 October 1950. The said excess leave became the term and condition of service in the employ of the concern. By an amendment to Clause G of the standing orders referred to above it is now clear that the stand taken by the concern before the arbitration was quite correct, and in the light of the amendment dated 28 October 1959:

If any factory was, prior to 13 November 1957, granting leave with wages in excess of what is prescribed in the Factories Act, such leave shall be adjustable towards the quantum of sick and casual leave allowed under this clause.'

1. In the light of the above amendment permanent workmen governed by the Factories Act will, after lapse of the notice-period, get the following leave:

(a) Those workmen who were getting 21/2 days leave per month, i.e., 30 days in a year plus 7 days sick leave per year, i.e., a total of 37 days in a year, will now get 6 days casual, 10 days sick and 21 days leave under the Factories Act. Thus, the total quantum of 37 days, in their case, will remain unaffected.

(b) Those workmen, who were getting 11/2 days leave per month plus 7 days sick leave per year or a total of 25 days in a year, will get 30 days leave per year split as under:

Sick leave, 10 days in a year. Casual leave, 6 days in a year. Leave under the Factories Act, 14 days in a year.

Their total will thus be 30 days in a year.

2. Seasonal workmen.-(a) Those who were getting 2i days leave per month of the season plus 3 days sick leave per season will get 1/2 day casual leave and 1/2 day sick leave per month and the balance will be given to them under the Factories Act, so that the total quantum of leave enjoyed by them previously will remain unaffected.

(b) Those who were getting 11/2 days leave per month of the season plus 3 days sick leave per season will get 1/2 day sick leave and 4 day casual leave per month of the season plus leave according to Factories Act or 1 day for every 20 working days.

8. In Para. 9 of the petition it is stated that the proposed changes reduced the number of leaves available to the workmen.

9. The workmen did not accept the proposed change as the quantum of leaves was sought to be reduced by the change. This was the dispute referred by the State Government for adjudication to the tribunal.

10. The tribunal gave its award on 25 May 1962 and the same was published by the State Government in the Uttar Pradesh Gazette dated 26 June 1962. The tribunal decided the dispute against the workmen and held that the curtailment in the quantum of leave was neither illegal nor unjustifiable.

11. It seems that there had been an earlier award of the industrial tribunal between the same parties in Arbitration Case No. 1 of 1959, dated 7 May 1959. The earlier award was contrary to the award of the tribunal dated 25 May 1962.

12. By means of this petition the petitioners challenge the award dated 26 May 1962 and the order of the State Government dated 26 June 1962 and pray that both be quashed. It is further prayed that the tribunal may be ordered to rehear the matter of dispute referred to it and decide the same in accordance with law.

13. A counter-affidavit has been filed on behalf of the mills and the petitioners have filed their rejoinder-affidavit.

14. I have heard Sri S. N. Kacker, the learned Counsel appearing for the petitioners, and Sri S.C. Khare, the learned Counsel appearing on behalf of the mills.

15. Sri S. N. Kacker contended that the tribunal failed to see the effect of Section 78 of the Indian Factories Act and the effect of Section 6 of the Uttar Pradesh Shops and Commercial Establishments Act that leave available to the employees cannot be unilaterally curtailed. He further urged that Section 41 of the Act could not be used to defeat the provisions of Sections 78 and 79 of the Indian Factories Act and Sections 5 and 13 of the Uttar Pradesh Shops and Commercial Establishments Act. The learned Counsel also contended that the deduction in the quantum of leaves would defeat the very purpose of the Act and that the curtailment was also against the provisions of law contained in Clause V of the standing orders governing the conditions of service in the pan vacuum sugar factories in the State. The learned Counsel next contended that the tribunal ought not to have differed from the order passed in Arbitration Case No. 1 of 1959 which continues to be effective and binding on the parties.

16. Sri S.C. Khare, on the other hand, urged that petitioners are basing their claim on standing orders of the mills and if these standing orders have been amended and an adjustment has been provided therein, the petitioners are not entitled to contend that there cannot be a reduction in the period of leave. According to the learned Counsel there has been no reduction at all and the total number of days of leave are the same. Sri Khare urged that the mills were giving extra leave to its workmen by grace and are entitled to adjust the same. According to the learned Counsel, under the contract between the parties, the workmen were entitled to 37 days leave in a year with pay and they are still getting the same. Sri Khare submitted that the previous award of the industrial tribunal, in Arbitration Case No. 1 of 1959 dated 7 May 1959, was binding only for one year and thereafter the State Government amended the original standing orders which were framed under Section 3 of the Act by a notification dated 3 October 1958. The learned Counsel urged that the amendment made in the standing orders in 1959 is supreme and if there is any provision under any other Act, that is superseded by Section 17 of the Act. Sri Khare further urged that the amendment in the standing orders gave the mills a right to adjust the quantum of leave. According to the learned Counsel, Section 78 of the Factories Act or Section 5 of the Uttar Pradesh Shops and Commercial Establishments Act does not guarantee anything. Leave was granted to the workmen under a contract and there has been no breach of contract on behalf of the mills. Sri Khare further urged that under Section 41 of the Act the mills could terminate the previous award in Arbitration Case No. 1 of 1959 by giving a notice and there was no illegality in issuing the notice.

17. I find considerable force in the submissions made by Sri S. N. Kacker. It is an admitted fact that the mills used to grant to its workmen more leave than is prescribed under the Factories Act and the Uttar Pradesh Shops and Commercial Establishments Act. As has already been stated above, the State Government by a notification dated 3 October 1958 framed some standing orders for sugar factories under Section 3 of the Act. Section 78 of the Factories Act is contained in Chap. VIII which deals with annual leave with wages and read thus:

(1) The provisions of this chapter shall not operate to the prejudice of any right to which a worker may be entitled under any other law or under the terms of any award, agreement or contract of service:Provided that when such award, agreement or contract of service provides for a longer annual leave with wages than provided in this chapter, the worker shall be entitled to only such longer annual leave.

18. The petitioners case is fully covered by the proviso to Section 78 of the Factories Act and the protection given by the above section is absolute and cannot be taken away. Section 79 of the Factories Act deals with annual leave with wages and the relevant portion of that section runs thus:

(1) Every worker, who has worked for a period of 240 days or more in a factory during a calendar year shall be allowed during the subsequent calendar year, leave with wages for a number of days calculated at rate of-

(i) if an adult, one day for every twenty days of work performed by him during the previous calendar year;

(ii) if a child, one day for every fifteen days of work performed by him during the previous calendar year.

Explanation I,-For the purpose of this sub-section

(a) any days of lay-off, by agreement or contract or as permissible under the standing orders;

(b) in the case of a female worker, maternity leave for any number of days not exceeding twelve weeks; and

(c) the leave earned in the year prior to that in which the leave is enjoyed ;

shall be deemed to be days on which the worker has worked in a factory for the purpose of computation of the period of 240 days or more, but he shall not earn leave for these days.

Explanation II.-The leave admissible under this sub-section shall be exclusive of all holidays whether occurring during or at either end of the period of leave.

19. The above two sections provide for a minimum pariod of leave which can be of several kinds such as earned leave or privilege leave and casual leave.

20. Similar provision is made in Sections 5 and 13 of the Uttar Pradesh Shops and Commercial Establishments Act. Section 5 of that Act says:

Nothing in this Act shall affect any right or privilege to which any employee of any shop or commercial establishment may be entitled on the date on which this Act begins to apply to such employee under any other law for the time being in force, or under any award, agreement, contract, custom or usage which may be in force on that date if such right or privilege is not conferred upon him by this Act.

(1) In addition to any holidays that may be given under Sections 11 and 12 every employee who has been in continuous employment for a period of one year shall be entitled to not less than fifteen days ordinary leave:

Provided that a workman or care-taker who has been in continuous employment for a period of one year shall be entitled to not less than thirty days ordinary leave.

(2) Every employee shall be entitled also, during any calendar year, to sickness leave not exceeding fifteen days:

Provided that sickness leave shall be admissible only after continuous employment for a period of six months:

Provided also that the granting of sickness leave shall be subject to such conditions as may be prescribed.

(2-A) Every employee shall be entitled also during any calendar year, to casual leave not exceeding ten days, as may be prescribed.

(3) Leave asked for under Sub-section (1) shall ordinarily be granted within fifteen days from the date of application.(4) * * *(5) * * *

22. It is clear that no reduction can be made in the leave granted to a workman on account of protection given to him by the sections quoted above, The protection given by the above sections of the two Acts is further strengthened by Clause U of the standing orders framed by the State Government for sugar factories by a notification dated 3 October 1958 under Section 3 of the Act. Section 3 of the Act deals with the power to prevent strikes, lockouts, etc., and says:

If, in the opinion of the State Government it is necessary or expedient so to do for securing the public safety or convenience or the maintenance of public order or supplies and services essential to the life of the community, or for maintaining employment, it may, by general or special order, make provision-

(a) * * *(b) for requiring employers, workmen or both to observe for such period, as may be specified in the order, such terms and conditions of employment as may be determined in accordance with the order;

(c) to (g) * * * Provided that no order made under Clause (b)

(i) shall require any employer to observe terms and conditions of employment less favourable to the workmen than those which were applicable to them at any time within three months preceding the date of the order,

23. Clause U of the standing orders framed by the notification dated 3 October 1958 deals with continuance of existing facilities and says:

No workman shall get less than Rs. 55 per month as his wage or any other statutory minimum wage fixed by the Government from time to time. The wages payable to a worker be calculated on the basis of thirty days in a month.

A factory shall also continue to give every workman all the existing facilities, allowances and concessions in addition to the wages payable to him:Provided that nothing in these standing orders shall be deemed to apply to an apprentice.

24. Clause G of the standing orders deals with leave conditions and Clause H deals with holidays. The last explanation to Clause G of the standing orders is important and says:

If any factory is already granting to its workmen any leave (other than weekly rest days, festival holidays, leave with wages under the Faotories Act) which exceeds sixteen days as admissible under this sub-clause the same will not be curtailed.

25. The State Government by a notification dated 28 October 1959 made an amendment in standing order G. A new explanation was substituted in place of the previous explanation quoted above. The new explanation runs thus:

If any factory was prior to 13 November 1957 granting leave with wage in excess of what is prescribed in the Factories Act, such leave shall be adjustable towards the quantum of sick and casual leave allowed under this clause:Provided that the employer shall not curtail any excess leave under the Faotories Act after adjustment of sick and casual leave, nor shall they curtail the weekly rest days, festival holidays or any other leave which is in excess of the leave admissible under the Factories Act and the standing orders.

26. In my view no amendment to the original standing orders could be validly made which runs contrary to the statutory protection given to workmen under Section 78 of the Factories Act and Section 5 of the Uttar Pradesh Shops and Commercial Establishments Act. There was statutory prohibition for curtailment of leave in Section 3 of the Act itself. Section 3(b) of the Act was the fountain-head under which the original standing orders were framed and forbade any change in terms and conditions of employment as were determined in accordance with the standing orders. It cannot be denied that leave facilities granted to the workmen were curtailed by the amendment made in the standing orders in 1959. The tribunal has found as a fact that there was curtailment. It is, therefore, not correct that the period of leave has only been adjusted and not curtailed. Privilege leave or earned leave accrues to a workman as a matter of right depending upon the period of service put in by him. To obtain privilege leave workmen need not give any justification, because he has earned it and he is entitled to it. What is protected by Section 78 of the Factories Act and Section 5 of the Uttar Pradesh Shops and Commercial Establishments Act, Section 3 of the Act and Clause U of the standing orders dated 3 October 1958 is the advantage which a workman is entitled to. Privilege or earned leave cannot be compensated by sick leave to obtain which a workman has to give reasons. So it is wrong to say that after the amendment in 1959 the total period of leave granted to a workman remains the same. The right of a workman to obtain privilege leave has been curtailed.

27. The mills issued the two notices dated 4 July 1961 under Section 41 of the Act. Section 41 deals with notice of change and says:

No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in Schedule III, shall effect such change-

(a) without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected or,

(b) within twenty-one days of giving such notice:

Provided that no notice shall be required for effecting any such change-

(i) where the change is effected in pursuance of any settlement, award or decision of the Appellate Tribunal constituted under the Industrial Disputes (Appellate Tribunal) Act, 1950 ; or(ii) * * *

28. The language of this section no doubt provides a procedure which has to be followed if any reduction in the amount of leave is sought but that procedure can be used only if an employer can legally effect a change in the leave which it used to grant to its workmen. Section 41 of the Act provides a further condition. To use the power contained in Section 41 an employer must show lawful Justification and must lawfully possess power to effect any change in the leave previously granted. Section 41 cannot be deemed to give a licence to an employer to make any change in the conditions of service. This section imposes a further limitation on the employer to effect a change in the conditions of service by giving twenty-one days notice. I agree with Sri Kacker that the very purpose of giving protection under Section 78 of the Factories Act, Section 5 of the Uttar Pradesh Shops and Commercial Establishments Act, Section 3(b) of the Act and Clause U of the standing orders, as originally framed, will be thwarted if unlimited licence is given to an employer to effect a change under Section 41 of the Act. Merits of the case have to be examined in spite of a notice under Section 41. Giving of a notice under Section 41 cannot justify curtailment of the protection given to the workmen by law. Statutory provisions like those contained in Section 78 of the Factories Act and Section 5 of the Uttar Pradesh Shops and Commercial Establishments Act cannot be defeated by giving a notice under Section 41. No amendment in the standing orders can override the provisions of Section 78 of the Factories Act and Section 5 of the Uttar Pradesh Shops and Commercial Establishments Act and Section 3 of the Act. Section 41 of the Act cannot be interpreted as an absolute right for determination of a privilege enjoyed by a workman. That section cannot be used as a charter by an employer to do anything he likes. Section 41 of the Act only says that an employer has a right to make a curtailment in the leave. He has to follow the additional procedure laid down by that section. It is an additional fetter on an employer. Sections 78 and 79 of the Factories Act and Sections 5 and 13 of the Uttar Pradesh Shops and Commercial Establishments Act contain a clear guarantee against curtailment of leave.

29. For the reasons mentioned above, I allow this petition with costs and quash the award of the tribunal dated 25 May 1962 and the order of the State Government dated 26 June 1962 and remand the case to the tribunal for a fresh decision in accordance with law.